Excerpt: ...ra 15 identified this motion. On 9/3/21, the CMC statement of PDG National at para 15 did not identify this motion. On 9/8/21, plaintiff filed a notice that PDG National had not opposed the motion. On 9/14/21, the parties appeared, and the Court set a briefing schedule. To date, no additional briefing has been received pursuant to said schedule. On 9/27/21, plaintiff filed a notice that PDG National had not opposed the motion. On 9/30/21, PDG Nat...

Excerpt: ...(Code of Civil Procedure ["CCP"] § 576; see also CCP § 473(a)(1) [allowing amendments to pleadings after notice to adverse party].) This Court should be "liberal in allowing the amendment of pleadings at any stage of the proceedings where the amendment does not cause prejudice to the rights of other parties." (McGuan v. Endovascular Technologies, Inc. (2010) 182 Cal.App.4th 974, 987.) Leave to amend should be granted unless there is "unwarrante...

Excerpt: ... B. Mitchell oppose the motion. In their reply brief, however, Plaintiffs concede that Questions 3, 4, 15, 17, 18, 19, 31, and 32 were satisfactorily answered during the deposition notwithstanding counsel's instruction not to answer. The Court accordingly considers the motion withdrawn as to those questions. Plaintiffs point to several questions to which the witnesses were instructed not to provide an answer on the grounds of irrelevance, specula...

Excerpt: ...tion. Defendants argue that inquiries into a treating physician's thoughts and opinions that were formed outside of Plaintiff's actual treatment are irrelevant as a matter of law when the treating physician has not been designated as an expert witness. (See County of Los Angeles v. Superior Court (1990) 224 Cal.App.3d 1446, 1455-1456 [vacating order compelling treating physicians must testify at deposition as to their present opinions of the medi...

Excerpt: ..., N.A. v. Superior Court of San Diego County (2019) 2019 WL 4309684 at *4; Tanguilig v. Bloomingdale's, Inc. (2016) 5 Cal.App.5th 665, 671.) A person asserting a claim on behalf of the LWDA under PAGA must obtain court approval for any settlement. Labor Code 2699(l)(2) states: "The superior court shall review and approve any settlement of any civil action filed pursuant to this part. ?The proposed settlement shall be submitted to the agency at th...

Excerpt: ...omplaint filed 8/26/21 alleges claims for (1) sexual assault/battery and for intentional infliction of emotional distress against nurses Fulgar R.N. and Jose, R.N. based on allegations that Fulgar touched Plaintiff's vagina under the pretense of taping her catheter. FIRST CAUSE OF ACTION - SEXUAL ASSAULT / BATTERY CACI 1300 and 1301 set out the elements of assault and of battery. The court disregards the references to the Penal Code and to federa...

Excerpt: ...aintiffs oppose. This matter first came for hearing on September 14, 2021. Plaintiffs argued that the Court should overrule the demurrer to the FAC's causes of action one through four and seven and eight. Defendants argued that the demurrer to the FAC's ninth and tenth should be sustained without leave to amend and the demurrer to the FAC's eleventh causes of action should be sustained. The Court considered those arguments and the authorities cit...

Excerpt: ...., Case No. CGC-18-568984), which, like this action, seeks only civil penalties on behalf of the state Labor and Workforce Development Agency pursuant to the Labor Code Privat Attorneys General Act of 2004 ("PAGA") (Lab. Code, §§ 2698 et seq.). Although filed in the Superior Court for the City and County of San Francisco, it is currently part of a coordinated proceeding, Mercy Housing Wage and Hour Cases (Judicial Council Coordination Proceedin...

Excerpt: ...record materials is outside the scope of discovery because not reasonably calculated to lead to the discovery of admissible evidence. But a party to an administrative record case may still use the Civil Discovery Act to discover materials if there is reason to believe they were omitted from or rightly ought to be included in the administrative record. Defendants argue that Requests 27-36 and 62-70 seek communications with Children's Hospital, dis...

Excerpt: ...aintiffs oppose. OVERVIEW OF ALLEGATIONS The FAC challenges that adoption of a county sales and use tax measure known as "Measure W" based on its designation on the 2020 general election ballot. Measure W allegedly received 358,123 voted in favor and 356,812 votes against. The County allegedly then declared that the measure had been passed and the tax would be adopted. Petitioners argue that Measure W is a "special tax" for purposes of California...

Excerpt: ...ubd. (f)(1).) There is one exception to this rule, contained in subdivision (t) of Section 437c. If the parties on both sides of the issue stipulate to an early resolution of a legal issue (or claim for damages) by the Court on a motion for summary adjudication, they may stipulate to such a motion being heard. (Id. at subd. (t)(1).) Before filing a motion under subdivision (t), the parties must file a "joint stipulation" accompanied by sworn decl...

Excerpt: ...which does not fully address the Court's concerns. First, the Court expressed concern that Plaintiff's counsel provided only an estimate of 566.3 hours of work on this case. The Court noted that this amount of hours is unusually high for a relatively straightforward PAGA action. The Court noted that Plaintiff's counsel's fee request was supported only by declarations conclusorily alleging that counsel's time was reasonably and efficiently incurre...

Excerpt: ...rnia Rule of Court 3.1350, subdivision (h). Although the motion was noticed, in the alternative, as one for summary adjudication, neither the notice nor the separate statement explicitly listed the issues for determination. (Cal. R. Ct. 3.1350, subd. (b).) Moreover, Levelset's motion was filed without any supporting affidavits, declarations or other evidence. "Code of Civil Procedure section 437c requires supporting declarations be filed in order...

Excerpt: ...osp. v. Mercury Constr. Corp. (1983) 460 U.S. 1, 24.) "California law, like federal law, favors enforcement of valid arbitration agreements." (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) The California Arbitration Act requires courts to enforce arbitration clauses. (Code Civ. Proc., §§ 1280 et seq.) California does not have a "policy compelling persons to accept arbitration of controversies which they hav...

Excerpt: ... The objections of defendants to portions of the declaration of plaintiff expert Michael Braun are OVERRULED. The objections of defendants to portions of the deposition of Rafael Cubero are OVERRULED. The Court's consideration of the evidence is limited to the motion for summary judgment and should not be construed as an indication of admissibility in future motions or at trial. BACKGROUND This is summary judgment, so the court takes all factual ...

Excerpt: ...change v. Superior Court (2004) 116 Cal.App.4th 446, 452; Ponderosa Homes, Inc. v. City of San Ramon (1994) 23 Cal.App.4th 1761, 1767-1768.) The Court may grant leave to amend to remedy any defects identified by a motion for judgment on the pleadings. (Code Civ. Proc., § 438, subd. (h).) The Court may grant leave to amend to remedy any defects identified by a motion for judgment on the pleadings. (Code Civ. Proc., § 438, subd. (h).) "Liberality...

Excerpt: ...Ms. Le and cut off Ms. Le. Ms. Ryles again followed Ms. Le and again cut off Ms. Le. When Ms. Ryles cut off Ms. Le the second time Ms. Ryles exited her car and took a photo of Ms. Le. Throughout the incident, Ms. Le's car was recording the incident. (PX 3) The day after the incident, Ms. Le reported the incident to the police. (PX 1, FI response 12.6) The Hayward Police cited Ms. Ryles for reckless driving under VC 23103(A). (PX 1, FI response 14...

Excerpt: ...n." (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 996.) Defendant is a public entity and "A public entity is not liable for an injury arising out of the alleged act or omission of the entity except as provided by statute." (Govt Code 815.) Claims against public entities be specifically pleaded regarding the relevant statute or regulation. (Lehto v. City of Oxnard (1985) 171 Cal.App.3d 285, 292-293.) Claims against public entities must ...

Excerpt: ...here was a water incident at the property. The water damage was covered by the policy. Plaintiff promptly notified defendant. On 4/20/20, defendant assigned an adjuster to the claim. On 4/24/20, the adjuster inspected the property. On 4/28/20, the claim settled for approximately $20,000. The adjuster told plaintiff she needed to complete remediation within 30 days. On 5/30/20, plaintiff invoked insurance arbitration. As a result of COIVID complic...

Excerpt: ...Agency pursuant to the Labor Code Privat Attorneys General Act of 2004 ("PAGA") (Lab. Code, §§ 2698 et seq.). Although filed in the Superior Court for the City and County of San Francisco, it is currently part of a coordinated proceeding, Mercy Housing Wage and Hour Cases (Judicial Council Coordination Proceeding No. 5015). The coordinated action currently includes one other case, Freeman v. Mercy Services Corp., (Super. Ct. for Sacramento Cty....

Excerpt: ...opportunity to purchase the property. Mother and Father had two daughters - Plaintiff Lian and Defendant Leshing. Leshing has her own daughter - defendant Granddaughter Tao Yu. Daughter Lian asserts that in 1993 she gave money to Mother for the purchase of the property, that Mother bought the property, and that Mother held the property in trust for Daughter Lian. (Lian Supp Dec, para 23-28, 35.) Daughter Lian has not produced a written trust docu...

Excerpt: ...nction preventing a nonjudicial foreclosure sale by Defendant Cenlar Capital Corporation. (See Order of March 16, 2020.) That injunction and the passage of time have together mooted some of her original claims under HBOR. The HBOR provides that, before a foreclosure sale has been finalized, a borrower may bring suit to enjoin a lender's material violation of certain specified protections. (Civ. Code, § 2924.12, subd. (a)(1) [providing for pre-fo...

Excerpt: ...er a new trial date has been set." (Code Civ. Proc., § 2024.050, subd. (a).) When ruling on such a motion, the Court considers any relevant facts, including but not limited to (1) the necessity of, and the reasons for, the requested discovery, (2) the diligence of the party seeking the extension and the reasons why discovery was not completed earlier, (3) the likelihood that hearing the motion will result in delay of trial, (4) the length of tim...

Excerpt: ....] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A special demurrer for uncertainty is strictly construed because ambiguities of pleading can be resolved through modern discovery procedures. (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822; Khoury v. Maly's of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for unc...

Excerpt: ...arties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Miller v. Fortune Commercial Corporation (2017) 15 Cal.App.5th 214, 220, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) Summary judgment is proper only when "there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code of Civil...

Excerpt: ... matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) For the Court to grant leave to amend after sus...

Excerpt: ...emurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Liberality in permitting amendment is the rule, if a fair opportunity to c...

Excerpt: ...urth Floor), 1221 Oak Street Oakland. Plaintiff's counsel provide an estimate of 566.3 hours of work on this case, which seems unusually high for a relatively straightforward PAGA action, supported only by declarations conclusorily alleging that these hours were reasonably and efficiently incurred. Although hourly billing entries are not generally required in the context of a settlement motion, the Court is unwilling to approve an attorney fee aw...

Excerpt: ...ng a complaint on demurrer is long-settled: "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) REQUESTS FOR JUD...

Excerpt: ...4.) "California law, like federal law, favors enforcement of valid arbitration agreements." (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) The California Arbitration Act requires courts to enforce arbitration clauses. (CCP §§ 1280 et seq.) California does not have a "policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate and which no statute has made arbitra...

Excerpt: .... v. Mercury Constr. Corp. (1983) 460 U.S. 1, 24.) "California law, like federal law, favors enforcement of valid arbitration agreements." (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) The California Arbitration Act requires courts to enforce arbitration clauses. (CCP §§ 1280 et seq.) California does not have a "policy compelling persons to accept arbitration of controversies which they have not agreed to ...

Excerpt: ...jections to the Glickstein declaration are OVERRULED. At deposition, Glickstein stated he did not recall the events relevant to this case. PX 2, pp 33-34, 54.) In his declaration, Glickstein states he recalls the events relevant to this case. "It is well-established that "a party cannot create an issue of fact by a declaration which contradicts his prior discovery responses. ... Where a declaration submitted in opposition to a motion for summary ...

Excerpt: ... the building manager before calling any of the contractors on the sheet. Stoneledge employee Mountain called the building manager and got no response. The emergency contact stated that tenants were to call Carson Madrona if they could not reach the building manager. Stoneledge employee Mountain did not try to call Carson Madrona. Stoneledge employee Mountain called Perez of DP Electric. DP Electric employee Perez tried to fix the electrical prob...

Excerpt: ... argues that the undisputed evidence shows that the delivery truck was not a proximate cause of the accident. EVIDENCE Plaintiff's objection #1 (police report) is SUSTAINED. It is not a business record. It is hearsay. Plaintiff's objection #2-10 (police officer testimony) is OVERRULED. The police officer was not qualified as an expert witness. The police officer can state his lay opinions. (Evid Code 800.) The police officer's conclusions based o...

Excerpt: ..." (Miller v. Fortune Commercial Corporation (2017) 15 Cal.App.5th 214, 220, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) A party may move for summary adjudication to decide whether there is no merit to causes of action, affirmative defenses, or claims for damages, whether "one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs," or some combination thereof. (Code of Civil Procedure ["CCP"...

Excerpt: ...nd a 10 year/100,000 miles powertrain warranty, which covers the engine and transmission." (Complaint ¶7.) On 8/14/14, the Vehicle had a check engine light, and the dealer fixed the issue. Tilley was identified as the owner of the vehicle. (UMF 16.) Over the next 27 months the Vehicle was presented to the dealer for seven occasions. (UMF 19.) On 4/X/17, Tilley transferred the Vehicle to plaintiff. (UMF 25; DX K.) On 9/1/17, Tilley passed away. (...

Excerpt: ...rer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) When a complaint is facially defective regarding a portion of a cause of action...

Excerpt: ...iled a class and collective action against GEICO in federal court. (Chung Dec, Exh A) On 1/27/21, plaintiff sent a PAGA letter to the LWDA regarding defendant GEICO. (Chung Dec, Exh B) On 4/9/21, plaintiff filed the complaint against GEICO asserting claims on behalf of the LWDA under Labor Code 2699 (PAGA). DEMURRER BASED ON STATUTE OF LIMITATIONS PAGA STATUTE OF LIMITATIONS - THE LAW The PAGA statute of limitations analysis concerns both (1) whe...

Excerpt: ...im related to workers compensation retaliation. The law on discovery of medical information is not in dispute. Disclosure of a party's medical history can be compelled with respect to those medical conditions that are in issue in a particular action but the party is "entitled to retain the confidentiality of all unrelated medical . . . treatment they may have undergone in the past." (Britt v. Superior Court (1978) 20 Cal.3d 844, 849.) The scope o...

Excerpt: ...v. Fortune Commercial Corporation (2017) 15 Cal.App.5th 214, 220, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) Summary judgment is proper only when "there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code of Civil Procedure ["CCP"] § 437c(c).) When a defendant moves for summary judgment, it is the defendant's burden as movant to show, for each caus...

Excerpt: ...ctual indemnification agreement. Procedurally, the Vintage motion is styled as a motion for summary adjudication, but it fails to distinguish between the five causes of action in the Vintage cross- complaint. The court considers the motion as it would a motion for summary judgment. Substantively, the Vintage motion for summary judgment seeking indemnification for the costs of defending this action is denied. Vintage has not presented any evidence...

Excerpt: ...Oakland filed an answer on June 11, 2021.The parties appear to have been in communication throughout this process. The policy of the state favors resolution of disputes on their merits. Because Oakland has filed its answer, the motion is DENIED. The Court further notes that the communications between the parties regarding this default were rather mercenary and sought to create a litigation advantage through procedure. This unnecessarily mercenary...

Excerpt: ...Defendants demurred to analogous causes of action in Dollaga's original operative complaint. The Court sustained that demurrer with leave to amend on March 30, 2021. Dollaga availed herself of the Court's leave and filed the FAC on April 15, 2021. The demurrer to the third cause of action is OVERRULED. The demurrer to the sixth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. Defendants are ordered to serve and file their answer the FAC withi...

Excerpt: ...rporation (2017) 15 Cal.App.5th 214, 220, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) Summary judgment is proper only when "there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code of Civil Procedure ["CCP"] § 437c(c).) When a defendant moves for summary judgment, it is the defendant's burden as movant to show, for each cause of action, that "one o...

Excerpt: .... [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Every complaint must "set forth the essential facts of the plaintiff's case with reasonable precision and with particularity sufficient to acquaint the defendant with the nature, source, and extent of the plaintiff's claim." (Prue v. Brady Company/San Diego, Inc. ...

Excerpt: ...on the ground that the vegetation on the median strip was not a cause of the accident. On 11/5/20, both plaintiff Russell and defendant Zitani both filed oppositions to the City's motion for summary judgment. On 3/15/21, the court granted the City's motion for summary judgment. On 3/19/21, the City filed a memorandum of costs for $30.036.17. On 5/24/21, the City submitted a proposed judgment stating that it had prevailed against plaintiff Russell...

Excerpt: ...2014, Attorney Scott Greenspan was employed by Sedgwick. While at Sedgwick, Greenspan represented defendants American Home Assurance Company and National Union Fire Insurance Company of Pittsburg, PA. (Greenspan Dec., para 22, 25.) Greenspan also defended AIG Claims on several coverage and bad faith cases and interacted with AIG Claims personnel on several matters. (Greenspan Dec, para 10-11, 30.) None of the cases or matters concerned either thi...

Excerpt: ...nd was exposed to benzene from 1970 through 1973. (Cpt para 1, B-E.) Plaintiff worked in Sacramento County and Placer County and was exposed to benzene from 1974 through 2019. (Cpt para 1, F-P.) Plaintiff currently resides in El Dorado County. Plaintiff's health care providers are located in Sacramento County and Placer County. PROCEDURE AND EVIDENCE. The motion is timely. "There is no time fixed by statute when an action may be transferred for t...

Excerpt: ...long as the amendment is "in the furtherance of justice, and upon such terms as may be proper." (Code of Civil Procedure ["CCP"] § 576; see also CCP § 473(a)(1) [allowing amendments to pleadings after notice to adverse party].) This Court should be "liberal in allowing the amendment of pleadings at any stage of the proceedings where the amendment does not cause prejudice to the rights of other parties." (McGuan v. Endovascular Technologies, Inc...

Excerpt: ...pay for the cost of preparing the record on appeal. (Govt Code 6103.) On 3/26/21, Plaintiff Muchnick then elected to use an appendix under CRC 8.124. PROCEDURE This motion concerns the interpretation and application of Rules of Court that relate to the record on appeal. CRC 8.124(a)(1) states that the superior court is to resolve disputes about the use of an appendix. APPLICATION OF GOVT CODE 6103 The Regents is a public entity, so the Govt Code ...

Excerpt: ... a response to this information without an affirmative "opt in" from its current and former employees. ANI argues that the Belaire-West process of providing employees the opportunity to "opt out" of having their information provided is no longer acceptable following the California Consumer Privacy Act ("CCPA") and California Privacy Rights Act ("CPRA"). The CCPA became effective January 1, 2020 (Stats. 2018, ch.55, § 3 [amending Civ. Code § 179...

Excerpt: ...rts claim for negligence, habitability, and violation of the Oakland Tenant Protection Ordinance. Defendant AMP Property Management owned the property after December 2018. AMP Property Management in in default. There is evidence that the unit was unlawful, suggesting that the lease agreement was unlawful. It is unclear whether the underlying lease is invalid and subject to rescission and plaintiff is entitled to a refund of some or all of the ren...

Excerpt: ...ameda County. (1AC, para 8, 11.) The order of 3/4/21 denied Defendant's previously filed a motion to change venue. The citations to paragraphs in the 1AC in the prior order demonstrate that he court was considering the 1AC to be the operative complaint. Regarding CCP 395.5, the prior order states: "Defendant does not present evidence that it makes no sales in Alameda County and ships no product to Alameda County. Plaintiff conversely does not pre...

Excerpt: ... for cannabis use and fails to inform the customers that they will be exposed to smoke as a reasonably foreseeable use of the product. (H&S 25249.6.) The 1AC filed 1/20/21 is the operative complaint. The 1AC asserts that defendant distributes its products in Alameda County. (1AC, para 8, 11.) The order of 3/4/21 denied Defendant's previously filed a motion to change venue. The citations to paragraphs in the 1AC in the prior order demonstrate that...

Excerpt: ...required the county board of supervisors to "consult[] with the local pediatric hospital" regarding expenditures. Children's Hospital demurred to that Complaint, and the Court sustained the demurrer without leave to amend on March 30, 2021 and ordered Children's Hospital dismissed as a party to this action. Children's Hospital filed a summary memorandum of costs on April 6, 2021, claiming $513.76 in filing and motion fees. Plaintiffs now move to ...

Excerpt: ... dispute." (Miller v. Fortune Commercial Corporation (2017) 15 Cal.App.5th 214, 220, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) Summary judgment is proper only when "there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code of Civil Procedure ["CCP"] § 437c(c).) When a defendant moves for summary judgment, it is the defendant's burden as movant to ...

Excerpt: ...cia fell from 13 feet high and hit him. The inspection showed that it fell because it was cut 1/8-1/16 inch short and out of square Plaintiff asserts a single claim for dangerous condition of public property. (Govt Code 835.) (SSUF 1) EVIDENCE The objection of the Regents to the Declaration of Zachary Moore is DENIED. Moore is a mechanical and forensic engineer and is a qualified expert in those areas. Moore's testimony that the fascia was an uns...

Excerpt: ...itting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Liberality in permitting amendment is the rule, if a fair opportunity to correct any def...

Excerpt: ...mpensation Plan And Agreement and plaintiff had time to review it before deciding whether to sign it. The arbitration provision is presented in the same manner as the other provisions in the Agreement. Plaintiff initialed each page of the agreement. Plaintiff had the opportunity to "out-out" of arbitration and did not exercise that choice. The agreement is a take it or leave it agreement. This is an indication that it is procedurally unconscionab...

Excerpt: ...illips filed the motion to transfer venue to San Diego. On 10/20/20, Leslie Phillips had filed her answer to the cross-complaint. MOTION #1 - PREFERENCE The motion of Stephen E. Phillips for trial preference is GRANTED. STANDARD UNDER CCP 36(a). CCP 36(a) states: (a) A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The ...

Excerpt: ...ss certification hearing for 01/10/2019. The time between filing and the reservation was 3 years and 10 days. What is the effect of the time gap, if any, on Defendant's Motion to Dismiss? 2. The Motion for Class Certification was heard on 09/13/2019 and the class was certified on 09/27/2019. Between Plaintiff obtaining its reservation on 02/15/2018 and the order certifying the class - a period of approximately 1 year and 7 months - the parties en...

Excerpt: ...easanton. (Cpt 7) Plaintiff sat on a bench and the bench collapsed. (Cpt 8) Plaintiff sustained serious injuries. (Cpt 8) Taylor Boynton was the sales manager for the area where incident occurred. (Cpt 5) Plaintiff alleges causes of action for (1) negligence, (2) premises liability, and (3) products liability. ORDER Negligence. OVERRULED. Plaintiff adequately alleges that Taylor Boynton, as sales manager for the area where incident occurred, had ...

Excerpt: ... which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) For the Court to grant leave to amend after sustaining ...

Excerpt: ...y service. CCP 203(a) now excludes from jury service 11 categories of persons. At issue in this case is CCP 203(a)(11), which states: "(a) All persons are eligible and qualified to be prospective trial jurors, except the following: ... (11) Persons who are currently required to register as a sex offender pursuant to Section 290 of the Penal Code based on a felony conviction." Plaintiff asserts a single cause of action asserting that the legislati...

Excerpt: ...nce of any trust. (Yu Dec, para 13) In 1993 it is unclear whether Mother lived in Alameda County (Lian Dec., para 2) or in China (Yu Dec., para 9-10.) In 2007, something happened. Daughter Lian asserts that in 2007 Second Daughter Leshing and Leshing's daughter Tao Yu persuaded Mother to transfer responsibility for the trust to Yu. If so, then the trust was presumably still for the benefit of Daughter Lian. Yu assets that in 2007 Mother sold the ...

Excerpt: ...to pay for the dental practice. Richard Evangelista filed a cross complaint alleging that Stephen Phillips breached the contract and that Leslie Phillips misappropriated trade secrets. Leslie Phillips filed a cross-complaint against Richard Evangelista arising from her employment with him from 2017-1919. On 3/22/21, Evangelista served a subpoena on Verizon Wireless seeking all of Leslie Phillips's telephone records for the time period 12/1/18 - 6...

Excerpt: ...tion procedures is to allow this Court to "cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Miller v. Fortune Commercial Corporation (2017) 15 Cal.App.5th 214, 220, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) Summary judgment is proper only when "there is no triable issue as to any material fact and that the moving party i...

Excerpt: ..., contractor NorCal Builders, and subcontractor Lutz Construction Services. Under the agreement, (1) there was a mutual release between H&H and NorCal, (2) Lutz released claims against H&H, (3) NorCal was to pay Lutz $30,000 in installments, and (4) if NorCal defaulted, then Lutz could seek judgment against NorCal. The 1AC alleges that Defendants Accredited Surety is NorCal's construction bond surety for that Guardian, is Accredited's claims agen...

Excerpt: ...ff Karen Permillion started employment with Alameda Health System. In March / Apr. 2017, plaintiff transitions to role in "EBEW" team. The job description requires a medical billing and coding certification, but Plaintiff is told that the requirement was not necessary. In Nov. 2017, plaintiff files for FMLA leave; takes 12 weeks protected leave. When she returns, she has doctor's orders to take intermittent leave. In April 2018, Plaintiff's manag...

Excerpt: ...s as "naturally occurring." The Court will not approve a settlement that allows such deductions unless the moving party shows, with evidence, that each allowance is based on accurate measurements of amounts of lead unavoidably found in low-lead sources of that ingredient. The supporting papers also provide no evidence from which the Court can determine the scale of unwarned exposures, such as the number of servings sold within California over a r...

Excerpt: ...earn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 996.) The court GRANTS the requests of Wells Fargo for judicial notice of the federal court order of 6/19/19 (RJN , Exh 5), the bankruptcy court order of (RJN Exh 29), and the 7/10/18 dismissal of the bankruptcy case (RJN Exh 31.) The other RJNs are not relevant to this order. Defendant Smith isthe former owner of record of a single-family residence (the "Property"). Defendant Robinson was marri...

Excerpt: ...judgment. On 7/18/16 the court granted summary judgment against Edward Plummer (Grandfather). Edward Plummer did appeal this Court's judgment, and the court of Appeal reversed. On 8/21/20, defendant Kaiser filed a motion for judgment on the pleadings asserting that under CCP 377.60 the Grandfather did not have standing to sue for wrongful death. On 9/22/20, the court granted that motion as to Grandfather stating: "Plaintiff concedes that he does ...

Excerpt: ..., Plaintiff noticed leaks and mold in his unit. (1AC, para 18.) In the spring of 2019, plaintiff noticed bed bugs in his unit and self-treated the unit for beg bugs. (1AC, para 20, 21.) The treatment was unsuccessful. (1AC, para 21.) In March 2019, Plaintiff reported bed bug and mold issues to Defendants. (1AC, para 22.) Defendants took no action. (1AC, para 23.) On 5/14/19, Plaintiff filed a housing inspection request with the City. (1AC, para 2...

Excerpt: ...dgment or adjudication on each of its causes of action. Defendants oppose. For the reasons discussed below, the City's motion for summary judgment is DENIED. LEGAL STANDARDS The purpose of summary judgment procedures is to allow this Court to "cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Miller v. Fortune Commercial Corporation (2017) 15 Cal.App...

Excerpt: ...aint. On 2/25/21, plaintiff filed an application to amend the complaint and attached a third amended complaint. The court denied this application. The court addresses the issues to the extent it can in the absence of the relevant complaint. Several of the issues can be decided as a matter of agreement or as a matter of law. The complaint that is not in the court record appears allege claims for (1) sexual assault/battery and for intentional infli...

Excerpt: ...000 to Kho. (OTO, L.L.C. v. Kho (2010) 8 Cal.5th 111, 119-120.) On 9/15/15, OTO filed an appeal from the Labor Commissioner's order, decision, and award ("ODA") dated 8/25/15. Following various appellate proceedings, on 8/29/19, the California Supreme Court in the Arbitration Case found the superior court had set vacated the ODA in error and remanded the case back to the trial court. (OTO, L.L.C. v. Kho (2010) 8 Cal.5th 111, 138-141.) On 1/25/21,...

Excerpt: ... necessarily incurred by the defendant." (Nelson v. Anderson (1999) 72 Cal. App. 4th 111, 131.) The party filing a motion to tax has the burden of showing that an item is not properly chargeable or is unreasonable. The Court's first determination is whether the statute expressly allows the particular cost item. The Court's second determination is whether the amount of the cost is unnecessary or unreasonable. In resolving the second issue, the obj...

Excerpt: ...llectively "Defendants") provided business insurance to Plaintiff during the period from 1998-2012. On 8/9/12, Plaintiff filed this case. Plaintiff seeks to recover policy benefits for lawsuits and claims against it arising from alleged defects in Plaintiff's plumbing components involving nine different lawsuits or projects. Plaintiff claims that Defendant renewed Plaintiff's policy in 2009/2010 even though it did not have enough money to pay cla...

Excerpt: ...ght to cancel the three Deeds of Trust from the three loans. This case is pending. In Orange Coast Title Company of Southern v. Does, RG19014321, the escrow company alleges that unidentified persons represented themselves to be Bui and Nguyen and fraudulently obtained loans. This case is pending. In this case, Evergreen v Real Advantage, RG20069506, Evergreen alleges that RATIC breached the title insurance agreement by not proving a defense in Bu...

Excerpt: ...llectively "Defendants") provided business insurance to Plaintiff during the period from 1998-2012. On 8/9/12, Plaintiff filed this case. Plaintiff seeks to recover policy benefits for lawsuits and claims against it arising from alleged defects in Plaintiff's plumbing components involving nine different lawsuits or projects. Plaintiff claims that Defendant renewed Plaintiff's policy in 2009/2010 even though it did not have enough money to pay cla...

Excerpt: ...federal court on behalf of a putative class of employees of defendant. In a class action, the plaintiff seeks to recover wages and money due to the members of the class. Defendant seeks to stay the LWDA's case pending resolution of the class action. COURT'S INHERENT AUTHORITY TO STAY The Court may stay a case in its entirety in the interest of justice. (C.C.P. 187; Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 7...

Excerpt: ...ntiff Zermemo filed this case in state court as proxy or agent of the LWDA under PAGA. In a PAGA case, the plaintiff can recover penalties on behalf of the LWDA. In a PAGA case the LWDA cannot recover wages. (ZB, NA v. Superior Court (2019) 8 Cal.5th 175.) Defendant seeks to stay the LWDA's case pending arbitration of plaintiff's individual claims. STAY UNDER CCP 1281.4 CCP 1281.4 states: "If a court of competent jurisdiction, whether in this Sta...

Excerpt: ... called the Rotunda Building, across the plaza from Oakland City Hall. In particular, the FAC's eighth and ninth causes of action seek a judicial declaration (8) that Rotunda Partners is obligated to make a "Contingent Payment" under Section 5(b) of the promissory note only on the first "bona fide sale" transaction and (9) that, assuming that is so, the "Contingent Payment" obligation provides no minimum dollar amount on the triggering transactio...

Excerpt: ...for the dental practice. Richard Evangelista filed a cross complaint alleging that Stephen Phillips breached the contract and that Leslie Phillips misappropriated trade secrets. Leslie Phillips filed a cross-complaint against Richard Evangelista arising from her employment with him from 2017-1919. REQUESTS FOR ADMISSION The Motion to compel Evangelista to provide further responses to RFAs 1-7 and 9- 11 is DENIED. The RFAs sought admissions contra...

Excerpt: ...aleed now demur to those cross-complaints. Because the cross-complaints and demurrers in these actions are nearly identical, the Court addresses them both at once. LEGAL STANDARDS The standard for construing a complaint on demurrer is long-settled: "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noti...

Excerpt: ...aleed now demur to those cross-complaints. Because the cross-complaints and demurrers in these actions are nearly identical, the Court addresses them both at once. LEGAL STANDARDS The standard for construing a complaint on demurrer is long-settled: "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noti...

Excerpt: ...907104. Plaintiff must file a consolidated Second Amended Complaint on or before 4/16/21. BACKGROUND The court assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 996.) The court GRANT's Red Bull's and the Individuals' requests for judicial notice of Court fil...

Excerpt: ...rt will drop the motion when it comes on calendar on 3/19/21. If counsel do not submit a stipulation on scheduling the expert depositions that takes this motion off calendar, then the court's tentative decision will remain as follows: TENTATIVE DECISION FOR 3/19/21 Plaintiff alleges exposure to various paints, cleaners, and other products, that the products contained benzene, and that the benzene caused hm to develop Acute Myeloid Leukemia ("AML"...

Excerpt: ...s agreed to IMEs by Dr Strassberg and Dr. Berg. Dr Strassberg was to be a several hour-long interview and a physical examination related to neurological issues. Dr. Berg was to be a written test. Plaintiff travelled from Los Angeles to the Bay Area. On 7/22/20 there were disputes over the length of the Dr Strassberg IME and whether plaintiff could have a nurse present for the physical exam portion of the IME. The IME was not completed. On 7/23/20...

Excerpt: ...Complaint filed 12/7/18 asserts four causes of action: (1) breach of contract; (2) violation of Civil Code § 2924c; (3) violation of Civil Code § 2924.17; and (4) B&P 17200. On summary judgment the court's review of the evidence is similar to an accounting of monies due and monies paid. Where there are factual disputes, the court construes the evidence in favor of plaintiff FIRST CAUSE OF ACTION - BREACH OF CONTRACT The motion of Ocwen for summ...

Excerpt: ... Fire Insurance Company of Pittsburg, PA (collectively "Defendants") provided business insurance to Plaintiff during the period from 1998-2012. On 8/9/12, Plaintiff filed this case. Plaintiff seeks to recover policy benefits for lawsuits and claims against it arising from alleged defects in Plaintiff's plumbing components involving nine different lawsuits or projects. Plaintiff claims that Defendant renewed Plaintiff's policy in 2009/2010 even th...

Excerpt: ... date of 10/24/20. On 10/15/20, the court continued the motion for summary judgment to 11/9/20. Plaintiff had not filed an opposition. On 11/9/20, the court continued the motion for summary judgment to 3/11/21. Plaintiff had not filed an opposition. Plaintiff has still not filed any opposition. Plaintiff has not filed any papers in this case since the 8/7/19 proof of service of the complaint. Defendant has regularly filed notices demonstrating pr...

Excerpt: ...oncerns a vehicle-pedestrian accident at the corner of 40th and Opal in Oakland. (SSUF 1.) The median strip on 40th Street between Opal and Shafter has vegetation that separates the two directions of traffic on 40th Street. (SSUF 22.) The City maintains the vegetation by authorizing private persons to maintain the vegetation through the "Adopt-A -Spot" program." (PAF 1, 2.) On the date of the accident, the vegetation in the median strip was more ...

Excerpt: ... necessarily incurred by the defendant." (Nelson v. Anderson (1999) 72 Cal. App. 4th 111, 131.) The party filing a motion to tax has the burden of showing that an item is not properly chargeable or is unreasonable. The Court's first determination is whether the statute expressly allows the particular cost item. The Court's second determination is whether the amount of the cost is unnecessary or unreasonable. In resolving the second issue, the obj...

Excerpt: ...pert designation date. The parties could not reach agreement. This motion followed. CCP 2034.230 states: "A demand for an exchange of information concerning expert trial witnesses ... shall specify the date for the exchange of lists of expert trial witnesses, expert witness declarations, and any demanded production of writings. The specified date of exchange shall be 50 days before the initial trial date, or 20 days after service of the demand, w...

Excerpt: ...ther plaintiff's son would move away from California. The attorney's work as negligent and he failed to achieve the desired result. The attorney's billings were inadequate and did not conform to B&P 6148. Plaintiff asserts claims for (1) breach of written contract, (2) professional negligence; (3) breach of fiduciary duty; and (4) negligence. REQUEST FOR JUDICAL NOTICE The request of defendant for judicial notice is DENIED. When the items sought ...

Excerpt: ...right to inhabit a home in Albany. The XC also alleges that Li has failed to pay rent on time, has failed to pay rent since March 2020, and as a result is currently in arrears for approximately $21,460 in back rent. The XC asserts a right to recover that unpaid rent under a theory of breach of contract or unjust enrichment. The Landlords oppose the demurrer and motion to strike. They also object to any consideration on the grounds that both were ...

Excerpt: ...nty argues that this action should be abated in favor of its own validation action, that Plaintiffs' allegations fail to state a cause of action. Dupuis also argues that Plaintiffs' due process causes of action (the only causes of action asserted against Dupuis) fail to state a cause of action, and the County requests to join that demurrer. Plaintiffs also move to strike language from the County's demurrer. For the reasons stated below, the motio...

Excerpt: ...ed case should be abated. Validation actions under Code of Civil Procedure section 860 are proceedings against the world to adjudicate the validity of a statute when authorized by another statute. Here, the relevant statute provides that an action alleging that "a [sales] tax ordinance . . . is contested, questioned, or denied on the basis that the tax ordinance is unconstitutional or otherwise invalid and filed for the sole purpose of contesting...

Excerpt: ...aana Technologies, LLC, for $746,555.10. The court found that the stipulation of settlement did not permit entry of judgment against Yanna's CEO, Puri. On 8/12/19, Plaintiff MacFarlane filed a request for dismissal without prejudice as to Puri. The Motion of MacFarlane to amend judgment is GRANTED as to Puri. The Motion of MacFarlane to amend judgment is DENIED as to Yaana, Inc., and Yaana Solutions, LLC. (R-2224769) "The authority of a court to ...